In a decade as a federal appeals court judge, Supreme Court nominee Neil Gorsuch has criticized courts for giving too much power to government agencies that enforce the nation’s labor and employment laws. As a lawyer in private practice, he also backed curbs on some class-action lawsuits.
His conservative approach could tip the balance in labor rights cases and other high court clashes that have split the court.
“I think employers have a supporter with this particular nominee who is unwilling to go along with agencies just because they interpret the law in a certain way,” said Gerald Maatman, a labor lawyer based in Chicago who represents employers.
In a closely watched case the Supreme Court is expected to hear later this year, the justices will decide whether companies can require workers to sign away their right to pursue class-action lawsuits. The National Labor Relations Board says such waiver agreements violate the rights of millions of workers who want to sue over wage disputes and other workplace clashes.
Labor union critics also hope the court will revisit a case that could threaten the financial viability of unions that represent government workers. A short-handed Supreme Court split 4-4 on the issue after Justice Antonin Scalia’s death.
And the justices may eventually take up a dispute working its way through lower courts over whether federal law banning sex discrimination in the workplace also covers bias against gays and lesbians.
The legal and public policy worlds are scouring Gorsuch’s writings and record for clues to his posture toward these and other issues. What they’re finding is a lawyer, and then judge, who has lashed out against securities class-action lawsuits and frowns on agencies that, in his opinion, overreach.
In a 2005 article written when he was in private practice, Gorsuch urged the Supreme Court to curb “frivolous” class-action securities lawsuits. He called such cases a “free ride to fast riches” for plaintiff lawyers.
On the appeals court in Colorado, Gorsuch’s opinions have taken aim at federal labor and employment agencies for going beyond their congressionally mandated missions. He has suggested that the Supreme Court should overturn a 1984 ruling that says courts must defer to government agencies when it comes to interpreting laws that define their mission.
Gorsuch dissented in a 2011 case where Labor officials wanted to fine an excavating company for violating federal standards after one of its workers died in a Colorado electrocution accident. The federal appeals court upheld the $5,500 penalty, but Gorsuch wrote that the Occupational Safety and Health Review Commission did not interpret the rules correctly.
“Administrative agencies enjoy remarkable powers in our legal order,” Gorsuch wrote in dissent. “Still, there remains one thing even federal administrative agencies cannot do. Even they cannot penalize private persons and companies without some evidence the law has been violated.”
He also chastised his fellow judges for siding with the Labor Department in a 2016 case in which a driver for TransAm Trucking Co. left his broken-down trailer on the side of the road. The company fired the driver for defying a supervisor’s orders to stay with the vehicle despite freezing temperatures. The Labor Department ruled that the driver’s actions were protected under federal law and he was to be reinstated, and the appeals court concurred.
But Gorsuch wrote in his dissent, “It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
In another case last year, Gorsuch grumbled in a dissent that the National Labor Relations Board had overreached when it ordered back pay for hospital employees whose hours had been unlawfully reduced.
Despite those and other writings, some labor leaders have held their fire on Gorsuch’s nomination, perhaps in the interest of choosing battles against the unpredictable Trump administration. But AFL-CIO President Richard Trumka said Gorsuch doesn’t seem like a friend to employees.
“He’s been a very, very strong advocate for corporations at the expense of working people,” Trumka said in an interview. “You think corporations need more help? And that they’re not strong enough and that they should be stronger, then he’s probably your guy. If you think that workers need more protection and corporations need less protection, then he’s probably not your guy.”
Gorsuch’s conservative legal philosophy has won praise from business groups that want to rein in government regulation and limit the rights of labor unions.
“Judge Gorsuch has been very firm on confining regulatory agencies to the text of the law,” said Juanita Duggan, president of the National Federation of Independent Business.